Pending
before the Court are both Plaintiff's and Defendant's
Motions to Dismiss, (ECF Nos. 58, 61), and Plaintiff's
letter-form Motion to Wave [sic] Filing Fee, (ECF No. 64). By
Standing Order filed in this case on December 2, 2013, this
action was referred to United States Magistrate Judge Dwane
L. Tinsley for pretrial management and submission of proposed
findings of fact and recommendations for disposition
(“PF&R”). (ECF No. 6.) On December 5, 2016,
Magistrate Judge Tinsley filed a PF&R, in which he
recommends that the Court grant Plaintiff's Motion to
Dismiss, (ECF No. 61), deny as moot Defendant's Motion to
Dismiss, (ECF No. 58), and dismiss this civil action pursuant
to Federal Rule of Civil Procedure 41(a)(2). (ECF No. 62 at
4.) On December 12, 2016, Plaintiff filed a timely Objection
to Dismiss and be Without Prejudice (“Objection”)
to the PF&R. (ECF No. 63.)

This
case involves a claim by an inmate at Mount Olive
Correctional Complex (“MOCC”) alleging that
Defendant, the unit manager of Oak Hall at MOCC, failed to
protect him following incidents where a softball and rocks
were thrown at him, resulting in cruel and unusual
punishment. (See ECF No. 47 at 1-4, 10.) Plaintiff
originally filed his Complaint on November 27, 2013. (ECF No.
3.) After additional filings supplementing his Complaint and
motions to amend his Complaint, Magistrate Judge Tinsley
directed the Clerk, in accordance with this Court's
memorandum opinion and order entered on March 12, 2015, (ECF
No. 45), to file collectively the following documents as
Plaintiff's Second Amended Complaint: ECF Nos. 34, 36,
37, 38, 39, 41, and 42. (ECF No. 46.) Plaintiff's Second
Amended Complaint (“Complaint”) was filed on
April 28, 2015. (ECF No. 47.)

On
November 16, 2016, Defendant filed a Motion to Dismiss. (ECF
No. 58.) Plaintiff then filed a letter-form Motion to Dismiss
on November 28, 2016. (ECF No. 61.) No responses were filed.
Magistrate Judge Tinsley filed the PF&R on December 5,
2016, (ECF No. 62), and Plaintiff submitted a timely
Objection on December 12, 2016, (ECF No. 63). Plaintiff filed
his letter-form Motion to Wave [sic] Filing Fee on March 3,
2017. (ECF No. 64.) As such, the PF&R, the Objection,
both Motions to Dismiss, and Plaintiff's Motion to Wave
[sic] Filing Fee are fully briefed and ready for disposition.

II.
Legal Standard for Review of the PF&R

Pursuant
to Rule 72 of the Federal Rules of Civil Procedure, the Court
“must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3) (emphasis added). The Court
is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge as to those portions of the findings or recommendations
to which no objections are addressed. Thomas v. Arn,
474 U.S. 140, 150 (1985). In addition, this Court need not
conduct a de novo review when a party “makes general
and conclusory objections that do not direct the Court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). However, “[t]he district court
cannot artificially limit the scope of its review by resort
to ordinary prudential rules, such as waiver, provided that
proper objection to the magistrate's proposed finding or
conclusion has been made and the appellant's right to de
novo review by the district court thereby established.”
United States v. George, 971 F.2d 1113, 1118 (4th
Cir. 1992). In reviewing the portion of the PF&R to which
Plaintiff objects, this Court will consider the fact that
Plaintiff is acting pro se, and his filings will be accorded
liberal construction. Estelle v. Gamble, 429 U.S.
97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978).

III.
Discussion

Plaintiff
objects to Magistrate Judge Tinsley's recommendation in
the PF&R that the Court dismiss this case with prejudice
and argues instead that it should be dismissed without
prejudice. (See ECF No. 63.) As explained by
Magistrate Judge Tinsley in the PF&R, “[t]he
central allegation in the Complaint documents is that John
Bess, the unit manager of Oak Hall, and other unnamed
‘guards' failed to protect the plaintiff after he
had allegedly told Bess about prior incidents of a softball
and rocks being thrown at him.” (ECF No. 62 at 1-2.)
The statute of limitations for a personal injury claim like
Plaintiff's is two years. See W.Va. Code §
55-2-12; Nasim v. Warden, Md. House of Corr., 64
F.3d 951, 955 (4th Cir. 1995) (citing Wilson v.
Garcia, 471 U.S. 261, 266-69 (1985); Cox v.
Stanton, 529 F.2d 47, 50 (4th Cir. 1975)) (“[T]he
court correctly observed that even though the limitation
period is borrowed from state law, the question of when a
cause of action accrues . . . remains one of federal
law.”) (emphasis in original). Plaintiff claims that he
originally told Defendant that a softball was thrown at his
head around July or August of 2011, (see ECF No. 47
at 1), but he did not initiate this case until November 27,
2013, (ECF No. 3). The PF&R provided that even if the
Court dismisses Plaintiff's Complaint without prejudice,
the statute of limitations would bar any later complaint from
being filed. (ECF No. 62 at 3-4.) Therefore, Magistrate Judge
Tinsley notified Plaintiff that dismissal would operate as
dismissal with prejudice “unless he can demonstrate . .
. that such dismissal should be without prejudice.”
(Id. at 4.)

Plaintiff's
Objection reiterates many of the factual allegations from the
Complaint before addressing the statute of limitations issue.
Plaintiff writes, “How is that fair to provide an
example of an imminent threat or danger but since the threat
has existed for so long of a time that the statue [sic] of
limitations goes back to the Stone age.” (ECF No. 63 at
2.) He then states, “I don't see how this complaint
could be time-barred because I filed it before the 2 year
statue [sic] of limitations was up. How can the defendant
have the right to say imminent threats were
time-barred?” (Id. at 3.) Plaintiff seems to
misconstrue the application of the statute of limitations as
a possible barrier to his claim that depends on when prison
officials became aware of the alleged incidents. (See
Id. at 3 (“The court should [sustain the Objection
because] the defendants were aware of threats made even if it
was over 2 years from today.”).) Plaintiff later filed
a letter-form motion on March 3, 2017, in which he asks the
Court dismiss his Complaint with or without prejudice for the
purpose of avoiding deductions for his filing fee that are
scheduled to begin in April. (ECF No. 64.)

Plaintiff's
Complaint, which is a compilation of several documents filed
by Plaintiff, alleges that a softball was thrown at his head
“around July or August 2011.” (ECF No. 47 at 1.)
He further claims that rocks were thrown at his head every
time he left the store at MOCC. (Id.) After
notifying Defendant of the “softball threat incident,
” Defendant allegedly informed Plaintiff that he would
“look into it.” (Id.) Plaintiff claims
to face “imminent threats constantly” due to his
status as a sex offender and states that “[p]eople were
throwing stuff at me daily.” (See Id. at 2,
12.) While Plaintiff claims that he faces “constant
rock throwing and softballs, ” the incident that
allegedly occurred during the summer of 2011 is the only
incident related to thrown objects upon which Plaintiff
expounds or provides any detail. (See Id. at 5.)
Plaintiff alleges another occurrence on December 28, 2011,
when he was allegedly stabbed on his way to the chow hall,
and he claims that was a result of Defendant's failure to
protect him. (See Id. at 14-16.)

The
Court does not find that the Complaint alleges any events to
have occurred since December 2011. Plaintiff states several
times throughout the Complaint that he faces “imminent
threats, ” but he does not allege the occurrence of any
specific incident since the stabbing in December 2011.
Plaintiff also does not allege any ongoing or continuing
occurrence other than the two isolated incidents referred to
herein. Thus, the latest that the Court can construe
Plaintiff's cause of action as accruing is December 28,
2011, which is the date on which he was allegedly stabbed due
to Defendant's failure to protect him. Applying West
Virginia's two-year statute of limitations to this
accrual date, any action relating to Plaintiff's claims
would have to be filed by December 28, 2013. Plaintiff's
Complaint was initially filed on November 23, 2013, which was
within the relevant time period. However, any subsequent
action related to these claims will be time barred under the
applicable statute of limitations, so a dismissal of this
case will operate as a dismissal with prejudice. The Court
finds that Plaintiff has not provided in the Objection any
legal or factual basis for dismissing the Complaint without
prejudice.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Regarding
Plaintiff&#39;s letter-form Motion to Wave [sic] Filing Fee,
he states that he &ldquo;need[s] a ruling before April or
[the] prison will start taking [his] money . . . .&rdquo;
(ECF No. 64.) He asks the Court to waive his filing fee and
dismiss the case with or without prejudice. (Id.)
Plaintiff filed two Applications to Proceed Without
Prepayment of Fees and Costs, (ECF Nos. 1, 50), and
Magistrate Judge Tinsley entered an order on October 25,
2016, wherein Plaintiff was notified that he could avoid the
required filing fee by notifying the Court via written letter
stating that he does not wish to prosecute this case. (ECF
No. 55 at 2.) Plaintiff wrote such a letter and filed it on
November 28, 2016. (ECF No. ...

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